The independence of the judiciary is one of the fundamental principles of a democratic state and a guarantee of fair justice. At the same time, the judiciary itself often becomes the target of systematic criticism and influence from participants in proceedings, politicians, the media and civic activists. Modern pressure on the courts increasingly rarely takes the form of direct threats or attempts at bribery. Much more often, it is exerted through information campaigns, manipulation of public opinion, mass complaints against judges and the discrediting of courts on social media, writes UNN.
Although the Constitution of Ukraine guarantees the independence of judges and any unlawful influence on them is prohibited, in practice the line between legitimate criticism of the judicial system and unlawful interference in the administration of justice often becomes a subject of debate.
What Is Considered Pressure on the Courts
The Constitution of Ukraine expressly guarantees the independence and inviolability of judges, while any influence on a judge is prohibited at the legislative level. The Law of Ukraine "On the Judiciary and the Status of Judges" stipulates that a judge must administer justice independently of any unlawful influence, pressure or interference.
However, the law does not contain an exhaustive list of ways in which such influence may be exerted, which somewhat complicates its legal classification. Therefore, pressure may include any actions aimed at inducing a judge to make a particular decision or creating conditions in which the judge feels psychological, political or public pressure.
Broadly speaking, all methods of influence can be divided into several categories.
One of them is information pressure. In recent years, information pressure has become one of the most widespread tools for influencing the courts.
This includes, in particular, discrediting campaigns through commissioned publications in the media targeting judges, the dissemination of unverified and fake information about them, manipulative videos, as well as publications that shape public perceptions of what a decision should be even before it is issued.
According to retired judge Oleksandr Sytnykov, this mechanism is being used increasingly often today.
"Another form of pressure may be commissioned materials in the mass media. This has been used very frequently lately. And sometimes it turns out to be quite effective for someone. Commissioned materials that in some way influence the opinions of judges and public opinion are widespread today. This is currently widespread," the lawyer notes.
However, pressure on judges is not always public. Manipulation of arguments and evidence is another form of influence
According to Oleksandr Sytnykov, one of the most common ways of influencing the court during the proceedings themselves is the manipulation and substitution of evidence and arguments.
This is not about procedurally defending one's own position, which is a normal element of court proceedings, but about the deliberate distortion of facts or the imposition on the court of a distorted picture of events.
Social media campaigns have become a distinct form of modern pressure on the courts.
The dissemination of unsubstantiated accusations regarding a judge's bias, the creation of an image of a "biased court," and the publication of offensive memes or videos that discredit a judge may be used as a way of shaping a negative public attitude even before a decision is made.
In Sytnykov's view, if such statements are not supported by evidence, they may be regarded as a form of pressure.
"Of course, this can be considered (pressure – ed.) if it is unfounded. If you have such suspicions, please file a motion for the judge's recusal. But there must be objective, rather than subjective, grounds for this," the retired judge explained.
The lawyer emphasizes that the law provides parties to proceedings with procedural mechanisms for protection—first and foremost, the institution of judicial recusal. Using information campaigns instead indicates not a desire to protect one's rights, but an attempt to influence the court through extraprocedural methods.
One such example is Vitalii Rusakov, a doctor at the Odesa private clinic Odrex, who is accused of medical negligence that resulted in a patient's death. He actively runs his blog on social media, where he creates memes about the judge and prosecutors and presents information in a light favorable to himself. Obviously, in this way the accused is trying to create a public perception of the persecution of an innocent person and shape the perception of the trial so that the only acceptable verdict can be an acquittal.
Mass complaints to the High Council of Justice
Another tool of pressure may be complaints against judges filed with the High Council of Justice.
Filing such an appeal with the HCJ is, in itself, the legal right of every person. If a judge's conduct does indeed contain signs of a disciplinary offense, such a complaint is entirely justified. However, the situation changes when filing complaints becomes part of an organized influence campaign.
Cases in which one of the parties to the proceedings uses social media to call on its supporters to send mass complaints against a specific judge are particularly dangerous. For example, the aforementioned accused doctor, Rusakov, called on people on Facebook to complain about the judge after he was suspended from his positions, claiming that this had allegedly deprived them of access to medical care. In addition, he tagged the HCJ's page several times in his evaluative posts about the trial.
"Dear patients, all of you who were expecting my help as a surgeon and endoscopist at the Odrex Medical House, I am currently still unable to help you in these specialties, and this is not my decision. If you wish, you have the right to appeal the violation of your right to medical care to the High Council of Justice," Rusakov wrote.
In Sytnykov's view, such an approach may be regarded as psychological pressure.
"I went through this back in 2014–2015. In one year, I received 15 complaints. Before that, I had worked for almost 20 years and had hardly received any complaints. This is undoubtedly pressure," the retired judge said.
According to Sytnykov, even if all such appeals turn out to be unfounded, a judge is forced to spend considerable time preparing explanations and responses and participating in HCJ hearings.
"It is psychologically stressful. You have to constantly write explanations and respond. And you understand that these are not different people," he added.
Where the line between freedom of speech and pressure lies
Freedom of speech is guaranteed by the Constitution of Ukraine and the European Convention on Human Rights. At the same time, the European Court of Human Rights has repeatedly emphasized that freedom of expression is not absolute and may be restricted if such statements pose a threat to the authority and impartiality of the judiciary. That is why criticism of a court decision after it has been issued is permissible.
By contrast, information campaigns aimed at achieving a desired outcome before the substantive consideration of a case has concluded may be regarded as an attempt to exert unlawful influence on the court.
Ukrainian legislation establishes both criminal and administrative liability for interference with the activities of judicial bodies.
In particular, Article 376 of the Criminal Code of Ukraine provides for liability for interference with the activities of judicial bodies. This refers to any unlawful influence on a court or judge aimed at obstructing the performance of official duties or securing the adoption of an unjust decision.
The independence of the judiciary today depends not only on legislative guarantees but also on the state's readiness to respond effectively to new forms of interference in the administration of justice. After all, the parties' right to protect their interests cannot be transformed into a right to influence the court outside the bounds of the proceedings, and freedom of speech must not become an instrument of pressure on justice, either within or outside the proceedings.